The online journal of a crusty, longwinded trial lawyer, bemused observer of politics, and internet dilettante

Wednesday, May 13, 2009

Beldar on Posner on conservatism

U.S. Circuit Judge Richard Posner of the Seventh Circuit is a fine jurist, and a profound thinker and writer on matters economic and legal. To the extent he and Barack Obama rubbed an occasional elbow as part-time faculty at Chicago Law School, he's probably as close to a "conservative" as the latter encountered — but that's very much a comment on the particular brand of economic (which is to say, important but restricted) conservatism associated with that law school and its host university. Nevertheless, Judge Posner has earned wide respect, and so I read with interest and an open mind this post on his blog in which he attempts to explore the question of whether the "conservative movement" is "losing steam."

Unfortunately, as Judge Posner has softened and dialed back his focus to consider, as he puts it, the "conservative movement" beyond the matters of his particular expertise and experience, he's offered up a very shallow critique that's essentially indistinguishable from that which a particularly bright member of the mainstream media — but someone informed only by the mainstream media, and disinclined to dig beneath its canards and biases — would create while ostensibly trying to stand in the shoes of conservatives:

By the end of the Clinton administration, I was content to celebrate the triumph of conservatism as I understood it, and had no desire for other than incremental changes in the economic and social structure of the United States. I saw no need for the estate tax to be abolished, marginal personal-income tax rates further reduced, the government shrunk, pragmatism in constitutional law jettisoned in favor of "originalism," the rights of gun owners enlarged, our military posture strengthened, the rise of homosexual rights resisted, or the role of religion in the public sphere expanded. All these became causes embraced by the new conservatism that crested with the reelection of Bush in 2004.

What an incredible non sequitur in the very first sentence of that paragraph — as if the Clinton Administration had been an instrument, rather than an opponent, of "the triumph of conservatism"! Bill Clinton, of course, has never acted out of any other principle than what would promote the career of Bill Clinton, and he famously "triangulated" himself into claiming credit for welfare reform and (compared to what came later and to the Democratic Party's reflexive defaults) fiscal sanity. But to mention Bill Clinton's name in the same context as Goldwater, Rand, Kirk, Buckley, Friedman, Hayek, Kirkpatrick, or Reagan is a terribly bad joke.

So, too, is it to assert with a straight face that "the essentially conservative policies, especially in economics, of the Clinton administration, and finally the election and early years of the Bush Administration, marked the apogee of the conservative movement." Bill Clinton won't be remembered in history for a few years of budget surplus (enabled jointly by the economic boom resulting from the transition to an information economy and taxation and spending policies forced upon him by a GOP Congress), nor for welfare reform (enacted, again, despite the resistance of most of Clinton's own party), but for disgracing the presidency with a tawdry sex scandal which he turned into perjury and obstruction of justice, leading to his impeachment. Just a few lines earlier in this same post, Judge Posner had already written, mostly accurately, that the conservative movement, as exemplified by Reagan,

included the free-market economics associated with the "Chicago School" (and therefore deregulation, privatization, monetarism, low taxes, and a rejection of Keynesian macroeconomics), "neoconservatism" in the sense of a strong military and a rejection of liberal internationalism, and cultural conservatism, involving respect for traditional values, resistance to feminism and affirmative action, and a tough line on crime.

Now, I can understand how Judge Posner came to list those features of Reagan conservatism in that particular order, given Judge Posner's own specialties and interests. But — with due respect to him — "respect for traditional values" isn't just a minor sub-branch of "cultural conservatism." Rather, it is the basic and fundamental explanation for almost everything else that can be properly described as "conservative," and it was the specific source of conservatives' profound revulsion to Bill Clinton as a national leader and a man, regardless of what policies Clinton's pollsters had persuaded him to support in any given week or month.

And note, too, how Judge Posner completely buys into the labels the Left puts on conservative positions. I, for example, consider myself an ardent feminist because I believe my daughters should have rights and opportunities equal to those of my sons; I don't know any conservative who disagrees. My respect for women and women's rights likewise leads me to honor and respect not only those women who choose to work outside the home, but those who choose (whether forever or just for a time) the traditional paths of mother and homemaker. But if one accepts without further scrutiny a definition of "feminism" which embraces so-called "comparable worth" philosophy — that is, which requires equal pay for work that in fact is not comparable, but of demonstrably lesser value — well then, yes, all proponents of genuinely equal rights for the sexes are redefined to become "resistan[t] to feminism." And the precise same analysis applies to racial preferences under the guise of "affirmative action." Until one looks beneath, and then rejects, these misleading labels, one cannot recognize how profoundly hostile the associated concepts are to individual rights and liberties. I wish Judge Posner would re-read Orwell's "Animal Farm" because he's lost sight of how ludicrous it is to insist that some animals are "more equal" than others.

Judge Posner is, I would stipulate, a moral man, as evidenced in small part by his inclusion in his list of "conservative movement" principles the "respect for traditional values." And even if he under-rates the importance, to both the movement and the nation, of that respect for traditional values, I doubt that he fundamentally objects to the notion that morality may properly inform and guide policy. Yet because he is not religious, Judge Posner slights and then disrespects the extent to which religion, too, may properly inform and guide policy — as distinct from dictating it. Count me in solidarity with my blogospheric friend Prof. Stephen Bainbridge, who felt compelled to disassociate himself from "the implicit assumption in Posner's post (as in so much else of his work) that religious discourse is inherently anti-intellectual (or, at least, non-intellectual)." Prof. Bainbridge points out that "a renewed conservative intellectualism would be deeply engaged with Catholic Social Thought," and that's exactly the right word to use — "engaged." Public policy decisions ought not be dictated by, nor married to, any religion or school of religious doctrine; but neither should those debating public policy be reflexively hostile to or dismissive of concepts and arguments that may have originated from a religious believer or an exercise of faith.

Either as a moral man, or as a Christian, I can be appalled by the slaughter of unborn children in Planned Parenthood's abortion mills — and I can likewise, as either, be concerned about the plight of the girl or woman who desperately wants off the path she finds herself on to motherhood. Both my moral and my religious views may properly play a part in my thinking and argument as I participate in a civil and reasoned analysis of either the public policy (very difficult) or the constitutional law (much clearer) of the ever-present debate over abortion rights. That doesn't make me "pre-occupied" with that particular topic, however, and it certainly doesn't disqualify my arguments on it. What ought to define the "conservative movement" is an easy, confident openness to ideas and principles, without the rigid notion so common among statists (poorly self-styled as "progressives") that any idea or principle which may be rooted in or even congruent with religion is necessarily a political heresy. Just as we recognize that racial preferences and welfare demean individual dignity and ultimately promote their own bigotry, we should recognize that reflexive hostility to religion and the religious is another form of bigotry.

These are the sort of intellectual blind spots — or, less charitably characterized, the sort of incidents of intellectual flabbiness and complacency — that can and should be forgiven in a man who's done so much else of real value in his genuine areas of expertise. I wage no jihad against Prof. Posner and his blog post, and I'd be glad to have him as a consistent tent-mate! But I welcome the day, if it comes, when he will recognize that on areas outside his own particular expertise in economics and antitrust law, he's let his intellect become stratified by adopting and then parroting double-speak from the Left. Regardless of whether it has "lost or is still losing steam," there's no doubt whatsoever that the "conservative movement" is currently out of power and reduced to "loyal opposition" status. But if Judge Posner's convinced that the "conservative movement" includes the likes of Bill Clinton and is hostile to daughters having the same employment opportunities as sons, then with due respect, I'm not looking to Judge Posner as the best forecaster of when, whether, or how conservatism and conservatives may return to a more powerful position.

"... (compared to what came later and to the Democratic Party's reflexive defaults) fiscal sanity. "

Please stop with this; the GOP decided quite with Reagan to abandon fiscal responsibility. Keeping up this obsolete notion is on a par with claiming the GOP to be the 'Party of Lincoln'.

(3)Beldar made the following comment | May 13, 2009 11:27:13 AM | Permalink

DiscQuo (#1): Thank you for the kind words. I'm less consistent in avoiding vitriol than I'd prefer, but I agree that it's an important goal.

Barry (#2): I agree that Reagan embraced deficits to a degree that would have shocked a classical fiscal conservative. But the deficits and associated deficit spending went in large measure to tax cuts and rebuilding the American military. The latter was a vital purpose and it ultimately proved to be economically productive (by making possible a world no longer riven by Cold War and able to embrace freer trade), not just a redistribution of wealth (like most of Obama's current spending spree). The tax cuts permitted the engines of capitalism to systematically repair and remake an American economy devastated by the Democrats since LBJ, eventually freeing it to complete its semiconductor-driven transformation into an information and services economy. So transformed, that economy then threw off tax revenue sufficient to balance the budget by Clinton's second term (so long as spending was not permitted to knock the bottom out of the federal coffers and drain the revenues faster than they were coming in). The tax policy — every part of which the Dems systematically ignore and mislabel except for its tendency to reward those who have capital to invest — when extended by Bush-43 was robust enough to further enhance revenues fairly consistently through 2008, despite the unbudgeted costs associated with 9/11 and two resulting wars. Until the crises of 2008, the deficit was shrinking again at an impressive rate, despite huge outlays for the GWOT and the prescription drug plan.

I will not argue that Bush-43 or the GOP were, overall, fiscal conservatives from 2001 through 2008. We were inevitably due, and actually well past due, for another recession — I do not believe that the federal government can, nor should try to, manage the national economy in a way that eliminates the traditional and inevitable business cycle — but the depth of this one, and in particular the instability of large institutions who had been encouraged or even forced to behave in economically unjustifiable and irresponsible ways to supply easy housing credit, must be laid at the feet of both parties. And as architects of fiscal destruction, the Bushies proved themselves small-potato pikers compared to the promiscuous spenders (soon to be promiscuous taxers too) now controlling the White House and both chambers of Congress — about whom the only redeeming feature is that they are so vastly irresponsible that they cannot help but accidentally promote a fiscal reform backlash that will dilute their consolidated grasp over political power in 2010 and perhaps break it by 2012 or certainly by 2014.

When afflicted by a serious (but not yet absolutely calamitous) recession, but when absolutely drowning in an unprecedented storm of government debt, the question then becomes whether Americans want to tie themselves to a boat that has sometimes been leaky, or to an anvil. Pointing out the leaks in the GOP boat — which is how I interpret your very civil comment — is useful, a necessary step in patching them. It doesn't make the boat less attractive overall, and it certainly doesn't justify strapping oneself to the anvil.

Judge Posner's article is symptomatic of a bigger issue - the failure of American elites to serve the broader population. The formal political leadership of both Republican and Democratic parties are out of touch with the public, as are academia and the media. Even "conservative" intellectuals have lost their audience.

Posner seems to regret that conservative leadership with active and popular ideas no longer comes from his sort of people. People like Rush Limbaugh have a much bigger influence but claim no mantle of intellectualism. Limbaugh has his limitations as a thought leader, no doubt, but his thinking is much more in line with that of conservative voters.

Posner does make a good point that conservative "deep thinkers" with actionable plans seem few and far between. I would note Jonah Goldberg's "Liberal Fascists" as an example of a work that aspires to the level but doesn't quite serve as a guide for action, being largely analysis of the opposition.

Judicial libs run in their own parallel reality. It's next to impossible to get them into an objective argument- I experience this with my (fine) lawyer all the time- he's so liberal that he thinks he's actually a moderate conservative. To him, anyone who's on his right flank is an evangelical extremist, a pre-facist, or a gun nut. On the other hand, he believes that Hegel and Hofer are leftists.

I think the same lack of reference has occurred to Judge Posner. Some people confuse their own leftward trajecory with rightward movement of non-liberals.

There once was a time when the mainstream news media was biased, but not an outright propaganda machine for the left. You got all the news and could discount the lefty spin. Lots of conservative thinkers, naturally voracious consumers of news, could rely on the MSM to give them the facts, and then apply the appropriate bias discount. They were well-informed.

This was still true during the Reagan years. But as Clinton careened from gaffes to scandals and back, as talk radio blossomed all over the AM dial, and as the GOP engineered the unthinkable takeover of the House, the partisan propaganda began in earnest. News favorable to the GOP was boycotted and outright fabrications favoring liberals became more commonplace. A conservative could no longer be reasonably well-informed if he simply read the Wash Post or NY Times and watched network news.

As bad as it was during the 90s, the partisanship in the news media got worse and worse with W as president. Now, Obama worship has taken the MSM to even lower depths of corruption. It is now impossible for anyone to be well-informed who relies solely on the MSM for news. The gaps in information are enormous. If someone has relied soley on the MSM for his "news" for the last 15 years, I don't think it would be possible that they could remain sympathetic to a conservative ideology. The news has been slanted that badly. It amounts to daily dose of slander.

As the quality of the news media continued on its path of corruption, it became possible to get a feel for which conservative commentators still relied on their old habits for news. Peggy Noonan is obviously the worst one. You can see it in the work of others. Make a note when they accept the Times' (really the DNC's) version of the "facts" as a given.

There is a clear difference between conservative commentators who include conservative web sites in their reading and those who do not.

Beldar, to the extent that Obama would've occasionally rubbed elbows at Chicago with Profs. Jack Goldsmith or Adrian Vermeule, or Frank Easterbrook, for instance, he would've encountered someone we could probably consider a much more "full-spectrum" conservative than Judge Posner. And it would've been hard for him to avoid free-marketeers (and former Deans) Richard Epstein and Dan Fischel (I have no idea of Fischel's political predilictions; Epstein is a libertarian) and noted Republican (whether he tends to Rockefeller or Reagan or Huckabee Republicanism, I have no idea) Ken Dam.

@Commenters: So, now Judge Posner is being put out to pasture along with Colin Powell? It's amazing how the Republican Party has gone from "permanent majority" to self-immolation in a few very short years.

If you are now drawing the line to the right of Posner, you got nothin' and nobody.

Dear Mr. Dyer: This isn't the first time Judge Posner has gone astray. You could see it in his impressive broadside on reforming the American intelligence agencies: here This 95 page broadside is an impressive analysis of what Geo. W. failed to fix, and the dangers this still leaves the nation vulnerable to. But there's precious little in what can be done to fix the flaws Posner has identified, beyond relaxing the due process restraints the American legal system labors under and creating new intelligence agencies that don't labor under the burden of history. No matter that this prescription to cure thyroid deficiency is exact; it won't do a dam bit of good to cure measles.

You and others blame Posner for not getting out into the world more. Commenter Stan, bless him, goes farther and blames the press entirely. It's refreshing to have someone even less balanced than I on the deficiencies of today's press. But I would suggest another cause: the old boy has too much on his plate. He's been an appellate judge for 28 years (Chief Judge for 7 of those years) a lecturer (possibly adjunct faculty) at the University of Chicago, and in this time has cranked out no fewer than 25 books and broadsides, plus a sizable amount of opinion and on top of all that, a very fine blog in collaboration with Gary Becker. I have always wondered how he got it all done. The suspicion is that he isn't "getting it done." There's a great deal of shallowness. This isn't necessarily bad. Posner does not stick to what he knows best, but often tries something new. This is a great way to stretch your intellect. But it can be overdone.

Nor is Posner in the best of of jobs to refresh his intellect. He's an appellate judge, used to seeing things come up a rigid chain. The job of appellate judging dictates that this must be so. But outside of judging events don't always come up via chains, as the financial disasters of late show. Even more damning: I remain convinced that the best chance the US had to stop the 9/11 attacks was FBI agent John O'Neill. This chance was never good, but it was blocked because of O'Neill's gaudy private life and notorious buccaneering in a grey, sedate bureaucracy. It's a tragic irony that O'Neill lost his life in the attacks. Put his record in front of Judge Posner and ask him to design a new intelligence apparatus that can distinguish the O'Neill's from the showboating self-interested hogs e.g. Michael Scheuer or Joseph Wilson. That would be a worthy challenge to Judge Posner's intellect. But he's overloaded himself, and the chances of him taking the time and trouble to dig to the bottom of this problem are slim.

But his intellect is right about many things. It's right about religious discourse must be non-intellectual. Religion is not about reason, but revealed truths. Religion covers other matter outside reason, e.g. What is the meaning of our existence? Professor Bainbridge is kidding himself, an occupational hazard of being a law professor, if he thinks that religious thought is going to provide a foundation for conservatism. Religious thought can contribute to conservatism, but any attempt to make religious thought the foundation of conservatism will fail, and disastrously. I commend his attention to Peter Drucker's dictum that in the life of any religious university, there comes a time when it must choose to be either a) a great university or b) a great (insert name of sponsoring religion) university. In our time, the prominent religious universities have become so by abandoning or at best, hollowing out, their religious beliefs. Don't believe me? Then tell me why Notre Dame, a supposedly religious university, invited Barack Obama, a foe of all Notre Dame supposedly stands for, as a commencement speaker? A university dedicated to the free play of ideas can invite Obama; a Catholic university can't . Notre Dame is now exposed as hollow.

I am a good deal more pessimistic than you are about the GOP regaining standing as a domestic political party. The One is going to do his best to ram nationalized medicine down our throats. Should he succeed, it will be there for good. Don't believe me? Note that Margaret Thatcher, universally admitted to being on the Right, a noted privatizer of nationalized industries, could not eliminate Britain's National Health Service. It would have been the best service she could have done from Britain and the US. She didn't even try, which should tell you something.

Once in, national health will keep American government big permanently, leaving a much more dangerous world. Big domestic government, will palsy American power abroad, and our enemies know this. I think the chances are better than even that a blowup will come during The One's first term. What do I mean by blowup? Literally: a nuclear exchange. Let Iran blast Israel, and Israel will retaliate. This will likely bring in Pakistan, then India. Without great good fortune, we could be living ON THE BEACH by 2016. The One doesn't believe this. He's swallowed the attitudes of elite education and environments, and despite what you say, I don't think he is a) smart nor b) willing to challenge himself intellectually. He will con people into believing that b) is true for him; that's why so many people voted for him who should have known better.

How did we get to this pass? Geo. W. bears most of the blame. He allowed himself to labeled conservative, but domestically he was no such thing as No Child Left Behind, the prescription drug benefit, the idiotic attempt to flood the nation with illegal-now-legal immigrants, the derangement of the financial system in favor of a house for everyone (to be sure, he feebly said that something should be done about this last, but could not stop it despite having a Congress of his own party for four of his eight years) and finally starting the disastrous expansion of government by bailout. He could not have prepared the way for The One better if he had done so deliberately. His administration was just as bad. See e.g. Dick "Deficits don't matter; Reagan proved that" Cheney. Or Colin "I'm for Obama even though I'm a Republican because that's the best way for me to keep in with the elites David Frum says we need to govern" Powell. Geo. W. continues his usefulness to the Left. Such ciphers as the characteristically pseudonymous LB can use him as a stick to beat the GOP with. They chortle, thinking they have a permanent majority. Let The One run wild for his term. What price majority?

Obama wasn't noted, at least when I was there, for any sort of engagement with the Law School in general, beyond the students who signed up for his seminars or a couple of faculty friends. Epstein was quoted in a few articles as saying that Obama was never a part of the Law School's intellectual community the way that other professors (and even many other adjunct professors) were and was never faced with (or assumed) the task of engaging competing legal philosophies or viewpoints as were the folks I listed above. Epstein's comments jibe with my experience.

(12) Sterling A Minor made the following comment | May 14, 2009 11:51:30 AM | Permalink

Posner and Bill Clinton are (were) both conservatives in the international mold of the past two centuries. Goldwater himself recegnized that he was an extremist (that is, not just a conservative, but an extremist conservative); those who in the United States these days label themselves conservatives are generally more extreme conservatives than are Posner or Clinton. It is clearly true that George W Bush was not a classic conservative in the mold of the historical definition, but his administration did overwhelmingly enact true extremist conservative goals: dominance of established [Christian] religion, concentration of power in the few [private finance, publicly-held business, powerful executive, friendly religious leaders], defeat of the lower middle class and its labor union strength, shrinking of the entire middle class, jingoism.

Shorter Beldar: the conservative movement can’t be intellectually bankrupt because Bill Clinton got a blowjob in the Oval Office.

In reality: Posner is saying, accurately, that Bill Clinton was a conservative president and that during the eight years of his presidency a genuinely conservative agenda was implemented by Congress with his support: a smaller military, a less internationalist foreign policy, repeal of welfare, no significant new social programs, a roll-back of affirmative action, decreased union strength and political influence, increased income inequality, a balanced budget, less anti-trust enforcement, a lighter regulatory hand on business generally.

Beldar, a word of advice. Didn't they teach you at UT Law that if you don't get the facts, the facts get you?

(14)Beldar made the following comment | May 14, 2009 12:14:03 PM | Permalink

Seanf (#13), there wasn't a class on internet trolls when I went to UT Law (1977-1980). But I've since learned that it's best to generally ignore those who insist triumphantly that they've devised a shorter version of exactly what I said. What I've said speaks for itself, and your attempt to re-cast it is as silly and obvious as it was when, for example, Clinton apologistas insisted that the entire Lewinsky affair was "just about a blowjob." Your "reality" paragraph is schizophrenic. And finally, if you're going to plagiarize here from comments left elsewhere, please have the intellectual honesty in the future to provide a link.

Is it possible that seanf is really Joe Biden in disguise?After all, Slow Joe frequently found it useful in his career to "borrow" from others. And seanf must have thought that jholbo's "short version" over on Crooked Timbers made sense to him.

But as to the topic raised by Mr. Dyer's original post, I will say that I tend not to listen to any single individual be it Posner, Powell or even one so rational as our host himself claiming that a particular political movement "has lost steam" or has "come to an end". It's just too difficult to tell. Things have a way of resurfacing, and the underlying themes in American political life never really go away. Right now we have a virtually unchecked executive branch with an actively colluding legislative branch. There will be excesses, and there'll ultimately be a pushback against those excesses.

If this comment were on topic, then the lack of vigorous conservative intellectual leaders would be mostly Bush's fault. Hard to credit that notion.

Unfortunately, the claim is larger than that - the risk of nuclear exchanges between various other countries is mostly Bush's fault.

I'm sorry, but that assumes that the world is devoid of independent free agents other than the president of the United States. If a non-US nuclear weapon goes off in New Delhi, Tehran, Tel Aviv, or Islamibad, it is NOT the fault of the American government.

I would argue exactly the opposite - Bush's reasonable handling of foreign affairs helped REDUCE the chances of that happening during his terms. That reduction has extended into the first part of Obama's term but looks to be reversing by Obama's actions. Did Bush kick a few problems down the road? Of course, but on balance did he leave a better world? I'd say yes and I think history will agree.

Seems like this judge stopped thinking sometime around the Carter administration. A fine analysis but one bone to pick with you, in the comments section you said Reagan embraced deficit spending. His tax cuts doubled government revenue, the deficit was caused not by the defense spending increase but by the Democrats demands for increased social spending in a quid pro quo not to block Reagan's defense measures.
As the record shows America has rarely had such a skilled or able president. Its a shame the GOP abandoned his principles and embraced those of the countryclub GOP.

This has cost the nation heavily. The judge is an example of this mentality.

The GOP has been changing over the past 60 years - as has the Democratic Party. Franklin Roosevelt helped to put us in the position we are in today with a huge federal government and entitlement programs that WILL bankrupt our country. Each subsequent President added to the size of the federal government and intruded into state government and our personal freedoms. Now, we are so blessed (not) to have obama in the White House. I honestly believe obama has a hidden agenda and will do anything he can to "change" America into the socialist, utopia he believes we all need. This man did not grow up in the United States, he had radical mentors from an early age and "Chose" America-hating, radicals to associate with when he became an adult. He is the only candidate for the presidency who has refused to release ANY of his personal documents, yet no one seemed to care. Please tell me who has verified his eligibility to hold the office of President? obama is using our tax dollars to fund his re-election by buying the votes of the entitlement class and by engineering government ownership of banks, insurance companies, health care and major industries. What our tax dollars will not cover, he is willing to borrow and put our country's finances in a deficit that will destroy our standing in the world.

This is the first time in my adult life I actually fear for the well being of our country. I do not know what the GOP should or should not look like, but I will do everything I can to improve its possible return to power. Our county cannot continue under obama's regime. I would like to think that every Conservative will work towards the re-birth of the Republican Party and to help guide our Republican leaders back to a conservative and moral platform with which to heal our country.

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